Robert Lavan Benford v. State

Affirmed and Memorandum Opinion filed April 12, 2007 Affirmed and Memorandum Opinion filed April 12, 2007. In The Fourteenth Court of Appeals ____________ NO. 14-06-00559-CR ____________ ROBERT LAVAN BENFORD, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 248th District Court Harris County, Texas Trial Court Cause No. 1056166 M E M O R A N D U M   O P I N I O N Appellant, Robert Lavan Benford, was convicted of capital murder and sentenced to life in prison. On appeal, appellant contends the trial court erred in excluding the jail records of appellant and his co-defendant. We affirm. Factual Background On February 14, 2005, Mario Sanchez and Porfirio Ramirez were walking home from a convenience store. A man riding a bicycle approached Sanchez, got off of the bicycle and asked for change for a five dollar bill. At the same time, Sanchez saw another man walk up behind Ramirez and point something at Ramirez= head. Ramirez raised his hands and Sanchez heard a gun shot. When he heard the shot, Sanchez ran away. He heard another five shots as he ran away. Sanchez positively identified Damien Dillard as the man on the bicycle but was unable to identify the shooter. Ramirez died as a result of the gun shot wounds. Approximately one week after the shooting, appellant was identified as the shooter, and Dillard was identified as his accomplice. Dillard agreed to testify against appellant and stated that he and appellant intended to rob Ramirez and that Dillard=s role in the robbery was to distract Sanchez while appellant robbed Ramirez. At trial, appellant attempted to discredit Sanchez= identification of Dillard as the man on the bicycle by introducing evidence that Dillard was the larger of the two men and that Sanchez had identified the man on the bicycle as being thinner than the shooter. Dillard testified that at the time of the offense, he weighed between 205 and 210 pounds. Appellant weighed approximately 170 pounds at the time of the offense. Ismael Flores, a Houston Police Officer, took a written statement from Sanchez in which he described the man on the bicycle as being five feet five inches tall and weighing 120 pounds. Flores admitted on cross-examination that because in the Hispanic community, the kilogram is the unit of measure for weight, it is possible Sanchez meant that the man weighed 120 kilograms. Flores testified that a person who weighed 120 kilograms would weigh approximately 240 pounds. Sanchez denied signing a written statement. In an attempt to introduce Dillard=s and appellant=s jail records, which contained their height and weight, appellant called Felicia Hood to testify. Hood testified that she was the custodian of the jail records, and that they were made in the normal course of business and were made by individuals with personal knowledge of the facts contained in the records. She also testified the records were made at or near the time of the events and were kept in the regular course of business of the Harris County Sheriff=s Department. The jail records reflected that appellant weighed less than Dillard. The State objected to the admission of the jail records because information appellant sought to introduce from the records contained hearsay. On voir dire, Hood testified that the person being booked provides information as to his or her height and weight. There is no scale or measuring device to verify the accuracy of the information. The trial court sustained the State=s hearsay objection as to the portions of the records that contained identifying information provided by Dillard and appellant. Exclusion of Jail Records In a single point of error, appellant contends the trial court erred in excluding the jail records. Whether an out‑of‑court statement is admissible under an exception to the general hearsay exclusion rule is a matter within the trial court=s discretion. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). Our role is limited to determining whether the record supports the trial court=s ruling. See Coffin v. State, 885 S.W.2d 140, 149 (Tex. Crim. App. 1994). Appellant contends the records were admissible under the business records exception to the hearsay rule. See Tex. R. Evid. 803(6). Rule of Evidence 803(6) provides that Arecords of regularly conducted activity@ may be admitted as an exception to the hearsay rule if the record (1) was made at or near the time by or from information transmitted by a person with knowledge, (2) was kept in the course of a regularly conducted business activity, and (3) was made as part of a regular practice of that business activity unless the source of the information or the method or circumstances of preparation indicate lack of trustworthiness. Appellant laid the proper foundation for admission of the jail records and the records themselves were admissible, but not all information contained in those records is necessarily admissible. The theory underlying the business records exception is that there is a certain probability of trustworthiness of records regularly kept by an organization while engaged in its activities and upon which it relies in the ordinary course of its activities. Crane v. State, 786 S.W.2d 338, 353 (Tex. Crim. App. 1990). When a business receives information from a person who is outside the business and who has no business duty to report or to report accurately, those statements are not covered by the business records exception. Garcia v. State 126 S.W.3d 921, 926 (Tex. Crim. App. 2004). Those statements must independently qualify for admission under their own hearsay exception. Id. at 926B27. The identifiers on the jail records such as height and weight were provided by the accused at the time of booking; therefore, the identifiers are not covered by the business records exception. Such a statement is not admissible unless it falls within another exception to the hearsay rule. See id. In this case, appellant offered the jail records for the truth of the matter asserted, i.e., that Dillard weighed 235 pounds when he was booked into the Harris County Jail. Appellant did not assert any hearsay exception other than the business records exception. Dillard=s and appellant=s estimations of their heights and weight found in the jail records are hearsay within hearsay and, as such, are inadmissible. See Cheek v. State, 119 S.W.3d 475, 478B79 (Tex. App.CEl Paso 2003, no pet.). Therefore, the record supports the trial court=s ruling excluding the jail records. Appellant=s sole point of error is overruled. The judgment of the trial court is affirmed. /s/ Wanda McKee Fowler Justice Judgment rendered and Memorandum Opinion filed April 12, 2007. Panel consists of Chief Justice Hedges and Justices Fowler and Edelman. Do Not Publish C Tex. R. App. P. 47.2(b).